part-3-architect-blog

[part-3-architect-blog]

Contract Administration for Dummies

Contract Administrator’s Role[i]

·         RIBA role specification begins with the Architect inviting tenders and then assisting the Employer in assessing the tenders returns and contractor selection.

·         Preparing the building contract (all contract documents) and arranging for signatures.

·         Administration of the terms and mechanics of the building contract

o    Change control, Employer Instructions, considering claims, chairing progress meetings and issuing reports, coordinating inspections, issuing of certificates

·         Liaising with other consultants to gather information sufficient to enable the contract to be properly administered.

·         In holding the balance between the employer and contractor’s interest, Architect’s duty to act independently, honestly, fairly and impartially.

 Information Release Schedule

·         If information listed is provided later than said date then it will be a relevant event in the case of extension of time claim.

 Contractor’s Master Programme

·         (cl 2.9.1.2) SBC16 requires the contractor to produce a master programme – it is not a contract document and does not impose any additional obligations on either party (e.g it would not oblige the contractor to carry out the work in any particular sequence).

·         Programme is useful to the CA to monitor progress and assessing extensions of time. Should show critical paths

 Delays[ii]

·         (cl 2.27.1) Where progress is likely to be delayed contractor must give written notice as soon as a potential problem becomes apparent – “forthwith”.

·         Contractor has to give notice to CA ANY delays including contractor culpable delays.

·         (cl 2.27.2) Contractor should set out causes of the delay and identify any relevant events and an estimate of their effects on completion.

·         CA to assess whether delay was caused by Relevant Event.

·         (cl 2.27.3) Contractor to provide any further information that CA may require.

·         Delay which impacts on completion date is caused by contractor, he is liable to pay LADs to Employer

·         Concurrent delay – some form of apportionment required, keep good records for investigation

 Extension of Time[iii]

·         Allow the construction period to be extended where there is a delay that is not the contractor’s fault.

·         (cl 2.28.2) CA should notify contractor of decision in any event as soon as he can and within 12 weeks.

·         IF CA accepts the delay was caused by Relevant Event then they may grant an EOT and the completion date is adjusted.Use reasonable skill and care.

·         (cl 2.9.1.2) Contractor to provide an updated master programme within 14 days of decision.

·         (cl 2.28.4) CA may reduce previous EOT by fixing an earlier completion date – Relevant Omissions (where work has been omitted through a variation instruction) – contractor must be notified of reduction attributed to each relevant omission (cl 2.28.3.2).

·         (cl 2.20) no EOT where delays caused by defaults set out in cl 2.20 ie errors in CDP or delay in submission of contractor’s design documents.

·         Contractor’s obligation to always mitigate its loss – able to show it has taken such reasonable steps

 Relevant Events[iv]

·         (cl 2.29) A delay which impacts completion date is not caused by the Contractor – for which the Contractor may be entitled to an EOT and to claim loss and expense.

1.       Variations

2.       CA instructions: Discrepancies in contract docs, postponement of work, opening up & inspection, issues with Named Specialist works

3.       Delay in giving contractor possession of site

4.       Discovery of fossils, antiquities on site

5.       Approximate Quantity estimated very incorrectly

6.       Suspension of work by contractor in case of Employer’s non-payment

7.       Acts of prevention, impediment by Employer, or Employer’s Person

8.       Statutory undertaker’s work

9.       Exceptionally adverse weather

10.    Specified Peril (fire, lightning, earthquakes, flood, escape of water from tank/pipe)

11.    Civil commotion or terrorism

12.    Strikes and workman protests

13.    Changes in statutory requirements

14.    Named Specialist insolvency

15.    Force Majeure

 Practical Completion[v]

·         (cl 2.30.1) CA certifies PC when all the works described in the contract have been carried out.

·         PC is where:

o    Exchange of site possession occurs, insurances switched, insurers need to be informed of outstanding works programme

o    Half of the retention fund is released to the contractor (cl 4.19.2)

o    Defects rectification period begins

o    Contractor’s liability for LADs ends (cl 2.32.2)

·         CA should bear in mind:

o    All the construction work that has to be done has been completed

o    Works can’t be practically complete where there are patent (known) defects

o    Works can be practically complete where there are latent (unknown) defects

o    CA can certify PC where there are very minor items of work left incomplete

o    Contractor must have complied with their obligation to provide as-built drawings and information requested for the Health & Safety file

·         Documentation that should be issued to the client upon certification of PC

o    Draft building owner’s manual (O&M manual) – operation, maintenance. Contractor

o    Building user’s guide – operating heating, lighting, cooling, access, security, safety systems

o    Health and Safety file – CDM. Principal designer

o    Building log book (building regs Part L)

o    Construction stage report – CA

  Sectional Completion[vi]

·         Provision/an express term within contract allowing different completion dates for different sections of the Works.

o    Multiple completion dates

o    Extent of each section clearly defined

o    Liquidated damages for each section

o    Release of retention specified per section

o    Clarification on how EOT provisions will be applied (knock on effects)

·         Common on large projects – allowing client to take possession of the completed parts whilst work continues on others.

·         Different from Partial Possession in that it is pre-planned and defined in contract documents.

·         Follows usual handover procedures (except some which cross all sections eg commissioning, O&M manuals, as built dwgs, MEP services)

·         Separate PC certificates and certificates of making good required for each section, one final certificate

·         Considerations/difficulties:

o    Complex logistics on site when different parties possess different sections

o    Protection of completed sections from ongoing work

o    Provision of appropriate insurance at all times for all sections

o    Appropriate H&S measures to deal with risks resulting from occupation of areas adjacent to or only accessible through ongoing construction works

o    Provision of appropriate security measures

 Non-Completion[vii]

·         (cl 2.31) CA required to certify failure to complete a section/the Works by the relevant date with a Non-Completion Certificate.

·         Once issued contractor is in culpable delay.

·         (cl 2.32.1.1) Required before any deduction of liquidated damages – may be deducted from next interim certificate, or reclaim sum as a debt.

·         If EOT granted following issue of nc certificate – certificate is cancelled. New nc certificate must be issued if contractor fails to meet new completion date

 Liquidated Damages[viii]

·         Pre-determined damages, reflecting the employer’s likely losses and expressed as a specific sum per week of delay to be compensated by the contractor in the event of failure to complete works by completion date.

·         LADs are entered for each section/for the works in contract particulars

·         Preconditions to be met:

o    Contractor failed to complete the works by completion date

o    CA must have fulfilled all duties with regards to granting EOT

o    CA must have issued non-completion certificate (cl 2.32.1.1)

o    Employer must have informed contractor before date of final certificate of the payment of LADs or the deduction from monies due (cl 2.32.1.2)

·         2 notices:

o    General notice of intention

o    Notice at the time payment is required/deduction to be made (must be no later than 5 days before final payment date). Must state that “for period between the Completion Date and the date of PC”

  Partial Possession[ix]

·         (cl 2.33-2.37) Possession by employer of completed part of works ahead of PC

·         (cl 2.33 + 1.11) Requires agreement of contractor, which cannot be unreasonably withheld, but not obliged to if it causes too many problems.

·         CA must issue notice to contractor identifying precisely extent (dwg) of ‘Relevant Part’ and ‘Relevant Date’ (date of possession). To be issued immediately after part possession occurs.

·         Effects of Partial Possession:

o    (cl 2.34) PC “deemed to have occurred” for ‘Relevant Part’ on ‘Relevant Date’.

o    (cl 2.35) Certificate of making good defects issued for that part separately. Defects Rectification period begins for that part.

o    (cl 2.36) Notify insurers. Client is responsible for that part and should insure it

o    (cl. 2.37) LADs are reduced proportionally

o    Half the retention for that part must be released

·         Considerations/difficulties:

o    Site logistics, operations, access

o    Protection of completed parts of the works

o    Provision of appropriate insurance

o    Appropriate H&S measures to deal with risks resulting from occupation of areas adjacent to or only accessible through ongoing construction works

Defective Work[x]

·         Where standard of goods/materials/workmanship is a matter of approval of CA under cl 2.3, dissatisfaction should be expressed within reasonable time cl 3.20, and reasons stated.

·         Achieving contractual standard of work is responsibility of the contractor.

 Defects Rectification Period[xi]

·         A contractual window during which the contractor has a right to return to site to remedy identified defects. Intended to allow for the rectification of defects that are not apparent at the date of PC. Default under SBC it is 6 months but employers often expect 12 months

·         (cl 2.38.1) CA may issue instructions/schedule of defects to the contractor requiring the making good of any defect at any time up until 14 days after the expiry of the rectification period. Contractor is required to rectify defects within reasonable time.

·         Alternatively, CA could instruct employer to accept the defects, whereby an appropriate deduction is made from the contract sum – viable option for very minor defects. Be careful as employer cannot claim for consequential problems or remedial work.

 Certificate of Making Good[xii]

·         (cl 2.39) When in opinion of CA the contractor has made good all the defects notified to them, CA must issue Certificate of Making Good.

·         Final certificate cannot be issued without the CA issuing the Certificate of Making Good first.

 Non-compliance by Contractor[xiii]

·         (cl 3.11) CA may issue notice requiring compliance with instructions, where if the contractor has not complied within 7 days, allows the employer to bring in another contractor to do the work and deduct the resulting costs from the contract sum.

  Valuation[xiv]

·         Assessing the value of the works carried out.

·         CA to instruct QS to calculate gross valuation of work carried out to date, usually prior to due date to determine whether the contractor’s interim application is accurate – their valuations should exclude value of incomplete or defective work.

 Interim Certificate[xv]

·         CA’s duty to issue interim certificates for payment at monthly intervals, after the work carried out to that date has been valued. The issue of the CA’s certificate is a precondition to the contractor’s entitlement to payment.

·         (cl 4.10.1) Contractor may submit an interim application before stating what the interim certificate to cover – but valuation is a CA’s responsibility.

·         Interim Valuation Date (date stated in contract particulars – contractor serves on or before) > Due date is 7 days from IVD(cl 4.8) > Interim Certificate (CA must issue within 5 days of each due date (cl 4.9.1)) > Pay Less Notice (issued by employer not more than 9 days after due date (cl 4.11.5)) > Final Date of payment (made within 14 days of Due Date (cl 4.11.1))

·         (cl 4.17.3) CA must issue statement specifying amount of the retention to employer and contractorwith each interim certificate.

 Retention[xvi]

·         Percentage (often 5%, default 3% if not stated) from each interim payment due to the contractor, that is deducted and retained by the client to create a fund which employer may use to remedy any defects that emerge.

·         Employer required to hold retention fund in a trust for the contractor, to protect the retention money against the employer’s potential insolvency. (at contractor’s request)

 Consequences of Non-payment[xvii]

·         (4.11.6) If Employer fails to pay a sum due to contractor on or before Final date for payment and fails to serve an appropriate Pay Less Notice, the outstanding sum plus interest may be recovered by contractor as debt – usually through adjudication.

·         (cl 4.13) Contractor, may subject to service of appropriate notice, exercise his right to suspend performance of all its obligations under the contract – work and insurance.

  Loss and or Expense[xviii]

·         Enable the contractor to be reimbursed for direct loss &/ direct expense suffered as a result of delay or disruption and for which he is not reimbursed under provision in the contract.

·         Contractor entitled to reimbursement for loss &/expense incurred as a result of deferment of possession or any occurrence of a Relevant Matter

·         (cl 4.21.1,2) Required to notify CA promptly, notice to be accompanied by an assessment of losses incurred/likely to be incurred

·         CA to ascertain loss and expense – CA must determine what has actually been suffered. (increased prelims, overheads, loss of profits, uneconomic working, inflation, interest, finance charges)

·         CA required to notify contractor of the ascertained amount of loss in 28 days.

·         Contractor’s obligation to always mitigate its loss – able to show it has taken such reasonable steps

 Relevant Matters[xix]

·         (cl 4.22) A matter which effects progress of the works and is not caused by the Contractor, Employer responsible – for which the Contractor may be entitled to claim loss and expense.

1.       Variations

2.       CA instructions:delays in receiving instructions, postponement of works, opening up & inspection, discrepancies in contract information, arbitration

3.       Delay in giving contractor possession of site

4.       Discovery of fossils, antiquities on site

5.       Approximate Quantity estimated very incorrectly

6.       Acts of prevention, impediment by Employer, or Employer’s Person

7.       Failure by client to supply goods or materials

8.       Issues relating to CDM

 Final Certificate[xx]

·         Certification by the CA that a construction contract has been fully completed.

·         Certificates that should have been issued by this stage:

o    Interim certificates monthly intervals with full retention percentage applied (cl 4.8, cl 4.19.1)

o    Practical completion certificate (cl 2.30)

o    Certificates at monthly intervals during the rectification period, with half the retention percentage applied (cl 4.8, cl 4.19.2)

o    Certificate of Making Good (cl 2.39)

·         CA to issue Final Certificate within the specific time periods set out in contract (cl 4.26.1) not later than 2 months of

o    End of Rectifications Period

o    Date of issue of the Certificate of Making Good

o    Date where statement of Final adjustment was sent

·         Process for calculating the final adjusted contract sum to be included in the final certificate begins with contractor – he must provide all necessary info to CA not later than 6 months after PC certificate/last Section Completion certificate.

·         Final date for payment of the Final Certificate is 28 days from date issued

·         CA’s role in Final Certificate: must be certain they have properly & fully discharged their duties as CA prior to issuing the certificate, and must ensure that Final Certificate is unambiguous and complies with the req. of the contract.

·         Final Certificate’s importance:

o    Conclusive where matters (including quality of materials, goods, standards of workmanship) have been expressly stated to be for the CA’s approval have been approved

o    Proper adjustment has been made to the contract sum

o    All and only such EOT, if any, as are due have been given

o    Reimbursement of all direct loss and/expense has been made in final settlement of any claims the contractor may have had

·         Either Employer or Contractor may challenge the Final Certificate by issuing proceedings within 28 days of its issue – certificate ceases to be conclusive.

  Breach of Contract[xxi]

·         If one of the parties to a contract fails to perform as required by the contract.

·         Specified defaults which may give rise to termination are if the contractor

o    Refusal to carry out work/suspend works (cl 8.4.1.1)

o    Failure to proceed regularly and diligently (cl 8.4.1.2)

o    Refusal/neglects to comply with written notice or instruction requiring removal/rectification of defective work (cl 8.4.1.3)

o    Failure to comply to CDM Regulations (cl 8.4.1.5)

o    Abandoning the site

o    Removing plant from the site

o    Failure to make payments

o    Employing others to carry out the work

o    Failure to allow access to site

o    Failure to remove or rectify defective works

·         Contracts usually have express provisions to deal with certain foreseeable situations which might otherwise be breaches – through EOTs etc

·         For more serious breaches contract contains provisions allowing termination of the employment of contractor.

 Termination[xxii]

·         Termination is of the employment and is NOT the termination of the contract itself – parties continue to be bound by it and liable under it after termination.

·         Termination procedures must be followed with great caution – if they are not administered strictly in accordance with the terms of the contract it could amount to a repudiation, allowing the other party the right to bring the contract to an end and claim damages.

·         Termination of the contractor’s employment by the employer:

o    SBC allows employer to terminate after the occurrence, before PC of works, of specified breaches of contract set out in the contract such as: suspending the works (cl 8.4), failing to comply with CDM Regulations (cl 8.4), or the insolvency of the contractor (cl 8.5), or cases of corruption (cl 8.6). If default occurs, procedure must be taken:

§  CA should issue a warning notice to the contractor specifying the particular default (cl 8.4.1)

§  If the contractor continues the specified default for 14 days from receipt of notice, the employer may then, on/within 21 days from the expiry of the initial 14 day period give further notice to terminate the employment of contractor (cl 8.4.2)

§  If contractor ends default or if employer does not give this notice and the contractor repeats the default, the employer may terminate within a reasonable time of the repeated default (cl 8.4.3) – employer must give notice of termination but no further warning is required from CA.

o    CA’s role and advice in relation to the procedures:

§  Before issuing any notice, CA should check that all EOT’s have been dealt with in accordance with contract

§  Identify that cause for termination is reasonable and not vexatious – be wary in taking part in such termination

§  Check if in event of suspension of work is with/without reasonable cause

§  Warning notice must clearly express the default forming the potential grounds for termination.

§  Following termination, a notional final account must be set out stating what is owed or owing – can be prepared by employer or CA’s certificate.

o    Termination by the contractor, or by either party:

§  Contractor has right to terminate its own employment under cl 8.9 in the event of specified defaults of the employer such as: failure to pay amount due to contractor (cl 8.9.1.1), obstruction of the issue of a certificate (cl 8.9.1.2), failure to comply with the contractual provisions relating to CDM obligations (cl 8.9.1.4), specified suspension events (cl 8.9.2), or insolvency of the employer (cl 8.10)

§  Contractor can follow same notice procedure as above, only difference is employer cannot do anything without CA’s initial warning notice. – contractor may give initial 14 day notice then a termination notice after a further 21 days if the default continues.

o    CA’s role and advice in applying principles to facts

§  Exercise good judgement

§  Required to advise along with employer’s legal advisers on the correct course of action – is the specified default continuing or remedied? Is issuing a termination notice an option? Is termination the right option?

o    Consequences:

§  Takes time for contractor to withdraw from site

§  Takes time for employer to establish amounts outstanding before final payment

§  Decision to employ others (cl 8.7.1) must be handled with care as completion of building started by another contractor is always difficult – exact state of completeness at time of termination and defective work to be recorded

 Insolvency of the Contractor[xxiii]

·         (cl 8.5.2) Contractor must notify the employer in writing in the event of liquidation or insolvency.

·         (cl 8.5.1) Employer is given an option to terminate or consider a more constructive approach.

·         During this period contract states that cl 8.73- 75 and (if relevant) cl 8.8 shall apply as if such notice had been given – meaning that even if no notice of termination is given, the employer is not obliged to make further payment except as provided under those clauses.

·         (cl 8.5.3.2) Contractor’s obligation to carry out and complete the works and design of CDP is suspended, and (cl 8.5.3.3) the employer may take reasonable measures to see that the site and works are protected.

·         Employer can then either make an agreement to arrange for the work to continue or terminate the employment of the contractor

  [i]Law in Practice: The RIBA Legal Handbook (Section 7) pages 171

[ii] Guide to JCT SBC 2016 (Section 4) pages 46-47

[iii] JCT SBC 2016 pages 35, 40

[iv] JCT SBC 2016 pages 41-42

[v]Law in Practice: The RIBA Legal Handbook (Section 8) pages 205-206

[vi]Designbuildings.co.uk (Sectional completion in construction contracts)

[vii]JCT SBC 2016 pages 42

[viii]Guide to JCT SBC 2016 (Section 4) pages 61-62

[ix]Guide to JCT SBC 2016 (Section 4) pages 61-62

[x]Guide to JCT SBC 2016 (Section 4) pages 81-82

[xi]Law in Practice: The RIBA Legal Handbook (Section 8) pages 200

[xii]Law in Practice: The RIBA Legal Handbook (Section 8) pages 202

[xiii]Law in Practice: The RIBA Legal Handbook (Section 8) pages 203

[xiv]Law in Practice: The RIBA Legal Handbook (Section 8) pages 204

[xv]Law in Practice: The RIBA Legal Handbook (Section 8) pages 206

[xvi]Law in Practice: The RIBA Legal Handbook (Section 8) pages 208

[xvii]Law in Practice: The RIBA Legal Handbook (Section 8) pages 210

[xviii]Guide to JCT SBC 2016 (Section 4) pages 99

[xix]Guide to JCT SBC 2016 (Section 4) pages 110

[xx]Guide to JCT SBC 2016 (Section 4) pages 120

[xxi]Guide to JCT SBC 2016 (Section 4) pages 133

[xxii]Law in Practice: The RIBA Legal Handbook (Section 8) pages 211

[xxiii]Guide to JCT SBC 2016 (Section 4) pages 137

[part-3-architect-blog]

Negotiating the Planning Maze - tl;dr version

Special Designations[1]:

·         Conservation Areas  — Conservation area consent — LPAs  

·         Listed Buildings — Listed building consent— English Heritage / LPA Conservation Officer

 Need for planning permission[2]:

·         Check if Permitted Development Rights apply (can be removed by 'article 4 direction')

·         In areas where unclear, obtain informal written opinion from LPA or formal 'certificate of lawfulness'Investigate the planning history of the site — LPA website or archive

 Pre-app[3]:

·         Investigate planning history

·         Check adopted / emerging designation under Local Plan

·         Change of use

·         In case of larger sites, check if 'planning brief' has been prepared

·         Study relevant development control  and highway standards adopted by council:

o   access, roads and parking, public and private amenity space provision, overlooking and overshadowing, affordable housing provision + developer contributions to infrastructure, community facilities etc

·         Visit site, identify constraints & opportunities, if necessary arrange a preliminary survey

·         Prepare preliminary sketch — send to planning officer before meeting

·         Possibly draft Design & Access statement, artist's impression of development

·         Check planning authority website for published planning guidance

·         For larger developments, consider if a formal Environmental Impact Assessment is required

·         Understand extent of delegated powers, dates of relevant committee meetings

·         (if controversial) Informal consultation exercise, acquire grassroots or other third party support

·         informal discussion with highway authority

·         Informal discussions with conservation officer / landscape division if changes to listed building / protected trees  

 Planning application types[4]:

·         Outline permission:  scale, appearance, indicative access points, landscaping, proposed use, amount of development, site layout + DAS (not suitable for sensitive locations) —time limited, requires RMA:

·         Reserved matters approval

·         Full planning permission

·         Retrospective application

·         Removal or variation of conditions

 Other planning consents / notifications:

·         Listed building consent

·         Conservation area consent

·         Advertisement regulations consent

·         Tree Preservation Order consent

·         Notification of proposed works to trees in a conservation area

·         hedgerow regulations consent

·         Certificate of Lawfulness ('lawful development certificates')

 Information for full planning application[5]:

·         1AAP form

·         Relevant ownership certificate

·         Correct application fee

·         Design & Access Statement —sell 'the story', justify proposal in relation to relevant planning policies, sell 'good design', relationship to context, state any consultation undertaken, strategy for access

·         All drawings at metric scale, with scale bar, remove 'do not scale' disclaimer. Application site with red line boundary. Site layout plan. Block plan of the site. Other relevant drawings

 Additional information for planning application[6]:

·         Affordable housing statement — check LPA policies

·         Air quality assessment —if adjacent to air quality management area (AQMA)

·         Biodiversity survey and report — might be part of Environmental statement

·         Daylight / sunlight assessment (Rights of Light) —if negative effect of adjoining properties and buildings

·         Economic statement — community benefits, extra jobs

·         Environmental statement — with formal Environmental Impact Assessment

·         Flood risk assessment — taking climate change into account. Sustainable drainage systems

·         Foul sewage and utilities assessment — agreed with service / utility provider & their requirements

o    whether existing services / infrastructure have sufficient capacity to satisfy demands

o    whether new services have environmental impacts

·         Heritage statement — following LPA conservation officer advice

o    Listed building consent —written statement including schedule of works, analysis of significance, justification for proposals. Structural survey might be required

o    Conservation area consent —written statement including structural survey, analysis of building, justification of proposals, impact on special character of area

o    Applications within / adjacent to conservation area —assessment of impact of development on the character and appearance of the area

o    Within an Area of Archaeological Potential / other areas in case of major development —an assessment of existing archaeological information

·         Land contamination assessment — existence of contamination, its nature, risk; can it be reduced?

·         Landfill applications

·         Landscaping details — connected to DAS. Long-term maintenance and landscape management

·         Lighting assessment —in case of external lighting is required. Hours, equipment, layout

·         Noise assessment — by a suitably qualified acoustician

·         Open space assessment — if no robust / updated assessment by LPA, independent assessment

·         Parking provision —details of existing and proposed parking

·         Photographs, photomontages and models

·         Planning obligations — section 106 or CIL. Clarify LPA requirements during pre-app  

·         Planning statement — planning context, how development relates to relevant national, regional and local planning policies. Separate statement on community involvement.

·         Site waste management plan — volume, type of material demolished. Reuse / recovery of materials  

·         Statement of community involvement —views of local community sought and taken into account

·         Structural survey

·         Telecommunication development — masts and antennas

·         Town centre uses — evidence for key considerations in PPS6: Planning for Town Centres

·         Transport assessment — accessibility by all modes of transport, reduce need for parking

·         Travel plan —promotes sustainable travel choices

·         Tree survey / arboricultural implications — which trees retained, means of protection

·         Ventilation  / extraction statement — odour abatement and acoustic characteristics

·         Sustainability assessment — BREEAM

·         Energy statement — predicted energy demand, 'green building' requirements for reducing CO2

·         Construction / demolition management plan — parking, loading-unloading, storage, security hoarding, wheel-washing facilities, recycling / disposing of waste

·         Crime prevention report — safeguarding community safety

 Special Designations[7] (rare):

·         National Parks  — Natural England

·         Areas of Outstanding Natural Beauty (AONB) — Natural England  

·         Green Belts — Planning Policy Guidance 2 (PPG2)

·         Nature conservation sites:

o    Sites of Special Scientific Interest  (SSSI)— Natural England

o    local nature reserves — LPAs & other private and public bodies

·         Scheduled monuments and areas of archaeological importance— English Heritage

·         Other heritage designations — PPG 15S sites:

o    World Heritage Sites; Heritage Coasts; Historic Parks and Gardens; Historic Battlefields

 Planning — registration[8]:

·         Validation (minor / small scale — 3-5 working days; major — within 10 working days)

·         Receive acknowledgement letter from case officer with Reference Number with intended time period

·         Decision time normally 8 weeks; 13 weeks for major application; 16 weeks if with Environmental statement

·         Decision-making period starts from the day after the day on which a valid application is received by LPA

·         Period for determining application can be subsequently extended by LPA with your written agreement

·         Invalid application may be returned; otherwise it will be retained an request for additional information made

 Planning — publicity and consultations[9]:

·         Practice on publicising applications varies, minimum set out in GDPO. Currently, publicised as notice in local newspaper, site notice or neighbour notification letter. Precise form of publicity determined by regulations.

·         21 days is normally given for comments (14 days where advertised), although can consider late comments

·         Special provisions for publicising major developments, for conservation areas and listed buildings, for developments within the Green Belt, outside town centres, in World Heritage sites, on playing fields, within flood risk areas in certain circumstances (defined in CLG Circular 02/2009)

·         Certain scale / type of developments require consultation with specified persons or bodies (statutory consultees) — highway authority, Environment Agency, local parish / community council, government authorities or agencies, other organisations and third parties. Statutory consultees must respond in 21 days

 Planning — LPA's assessment:

·         Keep track of the application process, be aware of any complications to take necessary actions

·         Efficiency is key in processing applications, so material changes to developments to overcome post-submission concerns may be resisted. Instead, withdrawal of application and fresh application is encouraged

·         During negotiations, it might be necessary to modify the proposal slightly and submit revised drawings. These normally trigger a further but shorter period of public consultation (14 days)

·         Case officer's written report / recommendation to council committee is usually made 2 weeks before meeting. Adding / amending information after this informal deadline may delay review until next meeting.

·         Planning officer report summary:  

o   proposed development and background info; site and surroundings; relevant planning history; development plan provisions; consultations and comments received; main issues and planning considerations; recommendation to grant or refuse; draft conditions to be imposed; terms of planning obligation; draft reasons for refusal or grant of permission

Planning — if prospect of refusal:

·         3 options: let application run and lobby members; withdraw to avoid 'negative history' and resubmit fresh proposal; ask to defer to enable further negotiations (unlikely)

·         Can request (via Council Member) for the application to be reviewed by committee instead of Case officer. Allows for other Council members to be lobbied or address committee in person (3 minutes per speaker)

·         Normally a revised application re-submission within 12 months does not require a new fee ('free go')

 Planning — decision options:

·         Grant unconditional approval

·         Grant approval with conditions

·         Grant permission following the prior completion of a planning obligation

·         Refuse permission

·         Defer a decision on the application

 Planning — planning conditions:

·         Ensure planning conditions are discharged before commencing on site. Get written confirmation

·         Some permitted development rights can be withdrawn by planning conditions

 Planning — planning obligations, developer contributions:

·         Planning obligation (under section 106 of the 1990 Act) — applies to the land, not applicant. Used to mitigate negative effects of a development or to prescribe nature of the development. Intended to make acceptable what would normally be an unacceptable development, by making location improvements. Takes effect after planning permission.  May be enforced by counts by means of an injuction.

·         Community Infrastructure Levy, CIL (Planning Act 2008) — levied on larger buildings rather than development; simple formulae; payments due at the start of development and not when planning permission is granted; proceeds spent on local & sub-regional infrastructure to support area development

Appeal[10]:

·         Handled by Planning Inspectorate (PINS) — executive agency, reports to Secretary of State

·         Fast-track Householder Appeals Service (HAS), target of issuing decisions within 8 weeks

·         Expenses for appeal normally paid for by parties

·         On average, about 1/3 of appeals are successful

·         Under section 79 of  1990 Act, appeal can be allowed or dismissed; any part of decision by LPA can be reversed; new conditions can be added; full permission can be voided (can withdraw appeal in this case)

 Appeal — different types of procedure:

·         Written representations — automatically used for HAS. Most common, simplest, cheapest and quickest.  

·         Hearing (informal hearing) — where questions need to be asked / appellant needs to be seen / 1 day only

·         Local inquiry (public enquiry) — complex issues, evidence by expert witness required. Representation by advocate, material facts / expert opinion in dispute and formal cross-examination is required. Legal submissions may need to be made. Most formal, similar to a court of law. Large, complicated, controversial.

·         PINS aims to determine 50% of appeals within 16 weeks for written (except 8w for HAS), 30w for hearings, 30w for inquiries. In practice, it has been 18 weeks — written, 29w — hearings, 34w — inquiries  

 Appeal — time limits:

·         Householder — within 12 weeks

·         Others  — 6 months

 Appeal — statutory / judicial review:

·         Statutory review —can be made after appeal by 'person aggrieved' if a basic error / inspector mistake can be proved. If successful, decision is quashed and case re-determined. Applications to challenge appeal decision in High Court must be made within 6 weeks of decision.  

·         Judicial review  — challenge 'on a point of law', normally by 3rd party against planning approval. In 3 months

   [1] Good Practice Guide: Negotiating Planning Maze (Section 3) pages 35-36

[2] Good Practice Guide: Negotiating Planning Maze (Section 5) pages 56-57

[3] Good Practice Guide: Negotiating Planning Maze (Section 5) pages 71-74

[4] Good Practice Guide: Negotiating Planning Maze (Section 5) pages 59-64

[5] Good Practice Guide: Negotiating Planning Maze (Section 5) pages 74-82

[6] Good Practice Guide: Negotiating Planning Maze (Section 5) pages 82-93

[7] Good Practice Guide: Negotiating Planning Maze (Section 3) pages 31-37

[8] Good Practice Guide: Negotiating Planning Maze (Section 5) pages 93-95

[9] Good Practice Guide: Negotiating Planning Maze (Section 5) pages 95-95

[10] Good Practice Guide: Negotiating Planning Maze (Section 6) pages 113-134